Terminally Ill Adults (End of Life) Bill

Lord Pannick Excerpts

Friday 14th November 2025 Lords Chamber

[Lord Shamash (Lab)]

My Lords, I listened very carefully to what the noble Baroness, Lady Finlay, said. She has put an enormous amount of work into the background of this Bill. One thing she did not address was the wording of the change from “capacity” to “ability”. It seems to me that the Mental Capacity Act runs like a thread right through the Bill to where we get to the issue of consent and what have you.

It may be that the Chief Medical Officer, Chris Whitty, considered that in his comments. The House might be grateful to receive, or hear, extracts from the Mental Capacity Act, which talks initially about an impairment; in this case it would be an illness. It talks about two tests: the diagnostic test and the functional test. The diagnostic test concerns being ill. The functional test is to understand the relevant information about the decision, including the consequences of each option. The second one is about retaining the information—holding on to the information long enough to make the decision—and then using or weighing the information as part of the decision-making process, and then being able to communicate that decision. That seems to me to be clearly about capacity, not ability, and I invite the noble Baroness to withdraw her amendment.

[Lord Pannick (CB)]

My Lords, I agree with the noble Lord, Lord Shamash. The noble Baroness, Lady Finlay, speaks with enormous authority based on enormous experience, but we are considering an amendment which seeks to replace “capacity” with “ability”. As Clause 3 of the Bill makes very clear, “capacity” is the term used because there is a well-established, tried and tested scheme under the Mental Capacity Act 2005.

By contrast, the word “ability”, which the noble Baroness seeks to insert, is inherently uncertain; it has no defined legal meaning. There are later amendments to this Bill, to Clause 3, which do seek to address the concept of capacity in the context of this Bill. They are very important amendments and I look forward to our debates on them—but to insert “ability” as the governing concept would simply cause confusion.

[Baroness Thornton (Lab)]

My Lords, I absolutely agree with the noble Lord, Lord Pannick. The noble Baroness, Lady Finlay, and I have worked together for many years, on many health issues, but I do not think she addressed the issue of why she wants to change the wording.

Given that we worked in 2005 on the Bill that actually put capacity into the legislation, I would be interested to know what her reasoning is. I think that is particularly important because the noble Baroness did not address the issue of choice. Of course, ability, capacity and choice are central to this Bill. I wonder why the committee whose report we have before us did not take any evidence at all from terminally ill people who need to make the choice in this matter. I think that was a grave mistake on its part and that if it had, that possibly would have led the noble Baroness to take a different view.

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[Lord Pannick (CB)]

The noble Baroness says that this applies only to moments in time. Is she aware that Section 24 of the Mental Capacity Act applies the concept of capacity to allow people to make advanced decisions that at a later stage they will not wish to have treatment that is life-saving?

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[Lord Pannick (CB)]

My Lords, we have had an hour and three-quarters on this amendment and perhaps we should move on.

[Lord Sandhurst (Con)]

My Lords, I shall be very brief. The definition at the beginning is a most important matter. I am quite clear, having heard noble Lords make a number of very sound observations, that “capacity” is an essential term. That is the first thing. However, it is not sufficient, and it has to be added to. I say that because the Mental Capacity Act states explicitly that a person is not treated as lacking capacity merely because they make an unwise decision. That is a very different situation from what we will be dealing with in many cases going forward. I urge the House, when this comes back on Report and preferably beforehand, and the promoters, to consider adding simply “and ability” so that it reads “capacity and ability” because they are different concepts, and they are necessary if this is to work properly in future.

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[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, as it is nearly 2.30 pm, it might be helpful to the Committee to know that, when my noble friend Lady Merron has responded for the Government Front Bench and my noble and learned friend Lord Falconer has responded, I intend to invite the House to resume; that will bring today’s debate to a close. That is my intention but, obviously, it is a matter for the Committee to decide what it wants to do.

[Lord Pannick (CB)]

Can the noble Lord give some guidance on the issue of timing? As has just been indicated, if it were not obvious before this morning, it is now perfectly obvious that four days is not going to be enough for the Committee stage of this Bill. There is unanimity that this is an exceptionally important Bill and that this House has to carry out its constitutional function of scrutinising it. It would be enormously damaging to the reputation of this House if, because of timing, we were unable to do that task. Will the Government make government time available?

[Lord Kennedy of Southwark (Lab Co-op)]

I thank the noble Lord for that point. As I said at the start, the Government remain neutral and will not be providing government time for this Bill. Obviously, we will look at things when we get to the end of our four days in Committee. I will then work with the usual channels to see what other time can be made available from non-government time, but we will have to see whether we will move on over the next few days.